Because We Trust Kyle and Monica More than We Trust the Deputy Attorney General

Marty Lederman

Last week, Murray Waas of the National Journal revealed that in March 2006, Attorney General Alberto Gonzales signed what Waas described as "a highly confidential order . . . delegating to two of his top aides -- who have since resigned because of their central roles in the firings of eight U.S. attorneys -- extraordinary authority over the hiring and firing of most non-civil-service employees of the Justice Department." Now, the good folks over at Talking Points Memo have posted that Attorney General Order, along with the routing memo for that Order from the Justice Management Division.

The persons to whom this important responsibility were being delegated are, of course, then-AG Chief of Staff Kyle Sampson and Monica Goodling, who just coincidentally was appointed to be White House Liason one month after this Order was signed.

Waas's article is terrific. Here's the gist of it:

The existence of the order suggests that a broad effort was under way by the White House to place politically and ideologically loyal appointees throughout the Justice Department, not just at the U.S.-attorney level. Department records show that the personnel authority was delegated to the two aides at about the same time they were working with the White House in planning the firings of a dozen U.S. attorneys, eight of whom were, in fact, later dismissed.

A senior executive branch official familiar with the delegation of authority said in an interview that -- as was the case with the firings of the U.S. attorneys and the selection of their replacements -- the two aides intended to work closely with White House political aides and the White House counsel's office in deciding which senior Justice Department officials to dismiss and whom to appoint to their posts. "It was an attempt to make the department more responsive to the political side of the White House and to do it in such a way that people would not know it was going on," the official said.

It's important to put this maneuver in some historical perspective.

For at least several decades, the Attorney General's authority to hire and fire DOJ officials and employees was largely delegated to the Deputy Attorney General (the No. 2 official at DOJ) and, for certain lower-level positions, to the Associate Attorney General (the No. 3 official). The regulations effecting such delegations, 28 CFR 0.15 and 0.19, were last comprehensively promulgated at the outset of the Reagan Administration. See 46 Fed. Reg. 52339 (Oct. 27, 1981).

In February 2006, the Department publicly promulgated an Attorney General Order that changed this longstanding practice. See 71 Fed. Reg. 6206 (Feb. 7, 2006). Nominally, the AG re-"reserved" to himself his long-ago-delegated authority to take "final action" in all matters pertaining to the appointment, employment, pay, separation, and general administration of three large and important categories of DOJ positions: (i) employees in the highest three Offices in the Department (the offices of the Attorney General, Deputy Attorney General, and Associate Attorney General); (ii) employees appointed to a Schedule C position established under 5 CFR part 213, or to a position that meets the same criteria as a Schedule C position; and (iii) "any Senior Executive Service position in which the incumbent serves under other than a career appointment." ["Schedule C" employees fill civil service positions that are in neither the competitive service nor the Senior Executive Service; they are positions "of a confidential or policy-determining character," such as special assistants and confidential secretaries.]

By all public accounts, then, the new regulation -- see 28 CFR 0.15(h) and 0.19(d) -- kicked responsibility for important employment decisions up the ladder, to the very top of DOJ. (DOJ did not explain why it was making such a fundamental change. The Federal Register Notice simply stated that "[i]n addition, the rule reserves certain personnel administration authorities to the Attorney General.")

Three weeks later, however, in a decidely non-public move, the AG re-delegated the responsibility -- not, this time, to the Number Two and Three officials in the department, but instead to the youth brigade. And, according to Waas, the purpose for this change in delegation was to ensure that the White House had much greater -- and more unilateral and less transparent -- decisionmaking with respect to DOJ employment decisions.

The White House Press Secretary is quoted in the Waas article as saying that it was "unremarkable" that Sampson and Goodling would be involved in the hiring and firing of Justice Department officials, because it "is fairly standard practice in any large Cabinet department or agency. The White House has full authority in hiring and firing presidential appointees [and] can choose to delegate that authority."

This is exactly right, but it's very revealing, too -- because of course there was nothing preventing the White House from influencing DOJ hiring decisions for the past several decades. As Bob Litt correctly notes in the Waas piece, there is nothing at all unusual or troubling about the White House being centrally involved in such decisions. It happens all the time, and in most cases it's entirely appropriate that, for instance, the President would have a veto over those chosen to be his agents within DOJ. This was the regular manner in which things worked in the Reagan, Bush I, and Clinton Administrations.

So why the change? Obviously, it's because the Bush White House had concluded that as long as the DAG and Associate were in the loop, as a practical matter the White House did not have sufficient control over employment decisions.

And why would that be? Because in the ordinary course of things, the prosecutors and other professionals in the DAG and Associate's offices served as an internal check to make sure that persons hired are not simply partisan hacks -- that they satisfy certain minimum professional qualifications and would be among the best available persons for the jobs. In other words, for more than a quarter-century, the process roughly ensured that potential hires would be fully vetted through a comprehensive process, and that eventual employees would satisfy two constituencies -- the poliitcal/policy folks, and the professionals.

But evidently this Administration felt that it could not trust the DAG's Office to march in lockstep behind the political decisionmakers. (At the time, the Senate had indicated that it would not confirm the President's first choice to replace James Comey as DAG -- Gonzales's former White House Counsel Deputy, Tim Flanigan -- and the White House had tapped Paul McNulty for the job.) Here's Waas:

Even though the White House played a major role in filling Justice Department positions before and during the Clinton administration, Litt said, "there was always a bit of tugging and pulling" between the White House and career department officials in selecting top aides: "Typically, a deputy attorney general might really like someone and the White House might not, or vice versa."

In the end, however, Litt and current and former Justice Department officials said that a balance is often brokered between the policy and political imperatives of an administration and the desire of career federal law enforcement officials to protect the integrity of the criminal-justice process. When Gonzales delegated such authority, and in secret, to Sampson and Goodling, he risked tipping that balance, Litt and other officials said.

That seems exactly right to me. The problem is not that political, policy and "loyalty" considerations would be brought to bear on high-level employment decisions at DOJ -- that has always been the case. The White House -- and the Goodlings and Sampsons of the Department -- have always been involved in such decisionmaking. The problem here -- the real radical shift -- is that under the new AG Order, the decisions are left entirely to such persons, so that the decisions are completely politicized -- anyone with any institutional or professional judgment or experience is cut out of the loop.

But two other things should be emphasized, too.

First, although the public AG Order in February 2006 purported to be re-establishing the AG's own responsibility for DOJ hires, in fact -- and just as with respect to the U.S. Attorneys scandal -- the Attorney General himself obviously was trying to wash his hands of it entirely, to delegate responsibility entirely to the White House and to its minions at DOJ. As to almost all appointees, the AG's delegation is to Sampson and Goodling outright -- not only wouldn't the DAG and Associate any longer have any say in the matter, but the Attorney General could remain oblivious to the political machinations, as well.

As to certain higher-level appointees -- those deemed "inferior officers" under article II, section 2 of the Constitution -- Waas explains that the Office of Legal Counsel got cold feet as to such a complete delegation, because OLC has not resolved the question whether the "Head of a Department" may delegate the power of appointing inferior officers to lower-level officers. In a recent Opinion, OLC concluded as follows:

The question whether Congress may permit the President or the head of a department to delegate appointment authority to an officer below the head of a department is a difficult one, and we cannot provide a definitive answer at this time. . . . [N]either the Attorney General nor this Office has definitively answered the question with respect to inferior officers who do not require Senate consent. While we do not attempt to resolve the question here, we can offer this advice: so long as each nomination is submitted to the [head of Department] for approval (whether individually or in groups) and each appointment is made in the name of the Secretary of Defense (whether the document evidencing the appointment be signed by the Secretary or an authorized subordinate officer), the Constitution would permit much of the legwork of the appointment process to be delegated to a subordinate.

Under this view, the Constitution allows the AG to assign virtually all of the "legwork" to Smapson and Goodling, as long as the final decision has the AG's approbation, which can be evidenced not only by the AG's own signature, but also by the signature of "an authorized subordinate officer." This is complete delegation in all but name. It's probably constitutional -- and it is, in effect, what was done for many years by delegating such decisions to the DAG and the Associate.

There would be nothing inherently problematic about transferring this responsibility away from the DAG to, say, other experienced professionals with law enforcement experience and judgment. The problem here is that this important function has now been delegated to persons having virtually no tie to the cadre of professionals in the Department -- young attorneys who had no background, experience or qualification to evaluate candidates for senior law enforcement positions except their political connections and loyalty to the White House. But the fact that the DAG's traditional responsibility was transferred lock, stock and barrel to these two people, of all the officials in the Department, makes clear that the only relevant considerations for hiring were to be partisan political considerations, not performance.

And the Attorney General himself will be at best a rubber-stamp.

Second, it appears not only that the DAG and the Associate were being cut out of the loop on employment decisions, but perhaps that they were not even let in on the fact that their former responsibilities had been delegated to Sampson and Goodling. The AG Order itself was cleared by OLC -- but by no other component. What's more, according to Waas, the DOJ "control sheet" that accompanies such an Order as it makes its way through the Department -- this document is not yet published -- included this notation: "Per instructions received from JMD [the Justice Management Division], ODAG [the office of the Deputy Attorney General] is to be bypassed on the package." We don't yet know whether this "bypassing" was done simply because the DAG was to have no say in any employment decisions any longer, or in order to keep the DAG in the dark about the delegation itself.

It would be interesting to learn whether Paul McNulty knew about this delegation -- and what he thinks about the emasculation of the traditional role of the DAG's Office in making sure that DOJ hires are marked by a minimum level of professionalism.

I see you are still rooting around for something approximating a crime in this matter and finding nothing. I am having a hard time getting worked up over the fact that the Executive may be delegating the authority to fire or hire a political appointee at Justice (or anywhere else) to someone other than the person who a past President has used.

The existence of the order suggests that a broad effort was under way by the White House to place politically and ideologically loyal appointees throughout the Justice Department, not just at the U.S.-attorney level.

Elections have results. I would hope that the President which I helped elect would hire political nominees of the same ideology for which I voted. These positions are called "political appointments" for good reason.

I trust the folks posting on this tempest in a teacup will also be in full dudgeon if Mrs. Clinton gets elected and follows in her hubby's footsteps by firing every political appointee at Justice "to place politically and ideologically loyal appointees throughout the Justice Department."

Somehow, I doubt there will be a single post on the subject if that happens.

{sarcasm}Absolutely, Bart. President Bush and AG Gonzalez are showing Strong Leadership. It's no crime to delegate the authority, in fact, every branch of government would be improved if the decisions were made solely on political ideological purity and coordinated with the White House. To the victor go the spoils, and Libs can just suck it up.

Besides, having accountable political appointees who knowthe value of loyalty to President Bush would sure help stop leaks!

"elections have results. i would hope that the president which i helped elect would hire political nominees of the same ideology for which i voted...".

i believe, once again, mr. depalma is missing the point. we all agree that the president can appoint u.s. attorneys, or any other federally appointed position for that matter, at will. what we are concerned with here is that the appointees have a certain level of competence and independence, which is not at all evident here.

hiring and firing is entirely discretionary, unless done so to stop ongoing criminal investigations of political friends and allies. that is known as obstruction of justice and plain old corruption. before anyone goes on about there is no evidence of this here, i would note that there is a certain appearance of impropriety that could stand the light of day; however, the administration has refused to allow those in the know to testify. i would note that there is a line i frequently use in closing arguments, which pertains to moments like this, "truth screams. weasels whisper". i would greatly appreciate the administration allowing truth to tell out.

finally, for those of my conservative friends out there, i am glad to know that you have come around to the position that the president may hire and fire subordinates, and you are finally admitting that the clinton position vis a vis the white house travel office, a position most of us would agree is a tad less important in the grand scheme of things than the department of justice, has been borne out.

Sometime, I think that Bart is an agente provacateur. He can't really misunderstand the point so completely, and repeatedly. He can't really continue to support without reservation a cabal that has consistently proven itself to both corrupt and incompetent repeatedly. He can't really mean to repeat the same nonsense mantras like "elections have consequences" totally out of context repeatedly.

It's like seeing a liberal continue to support the notion that Clinton would never lie to this day. I would have to assume that the individual in question was intentionally trying to sow doubt in the sanity of liberals.

It's one of the nicer tricks we pulled in WWII pacific: rebroadcasting Japanese radio propaganda, after adjusting all their claims up by an order of magnitude. If the Japanese said they had killed 100 Americans, we would claim to be a Japanese newscast claiming a 1000 Americans killed. Bart must be the liberal equivalent - I never realized we were so clever!

The GOP has assigned a designated troll to most mainstream blogs that allow open comments. You see it at each and every one of them. I don't think it's just a coincidence. It's always just one, and they always chime in.

I agree with the others that from the start you have been evading the issue here. We all agree that the President has the authority to require DOJ employees to follow his general law enforcement priorities. We make not like those priorities, but, as you say, elections have consequences.

The question is, what if the President wants US Attorneys to make their priority ensuring that his party wins elections. Do you consider that proper?

Suppose the DOJ treats any narrow win by the opposing party as presumptively fraudulent and routinely requires indictments for voter fraud? (Or, if a Democrat is in power, for illegal vote suppression). Suppose the DOJ make a regular practice of timing indictments to influence elections, speeding up indictments of the opposition to before the election and delaying indictments of its own party until after? Is that proper?

You may say that is not what is going on. Well, feel free to argue that, but stop dodging the hypothetical. If the President (any President) uses prosecutions as a tool for influencing elections, is that proper?

Prof. Lederman's analysis is excellent, in particular because it emphasizes the difference between appointing Schedule C and other political appointees who are dedicated to the mission of the agency and appointing hacks who will twist and undermine the mission of the agency to whatever extent their political masters dictate.

The DAG must be confirmed by the Senate and the DAG's office is fairly visible. Delegating the power "to take final action" in hiring political appointees to the DAG (as in the Ashcroft DofJ) provided a potential check on the abuse of that power and thereby contributed to the selection of experienced, competent professionals for the important business of running the DofJ.

If the Senate had approved Tim Flanigan as DAG, Gonzales would have left the formal structure alone. Goodling and Sampson would simply have informally vetted all hiring and firing, and passed the info along to Flanigan.

Since the Senate balked at approving another political flunky at DofJ (Gonzales was bad enough), Gonzales surreptitiously delegated the power "to take final action" on hiring and firing all political appointees to his Chief of Staff and to "the White House liaison." For these two subordinate positions to have power "to take final action" on hiring and firing anyone would certainly not be approved by any corporate HR managers among Bush's supporters and contributors. To place in these two positions lawyers who were as wet behind the ears as Goodling & Sampson just amplified the stupidity ten-fold.

Does this delegation memo help to explain why no one knows who decided "to take final action" on the firing of the eight [now nine, soon to increase further] United States Attorneys?

Bart, I agree with the others that from the start you have been evading the issue here...The question is, what if the President wants US Attorneys to make their priority ensuring that his party wins elections. Do you consider that proper?

That was not one of the points made by Professor Lederman in his post. However, I would be pleased to respond to your question.

How can the DOJ influence the outcome of elections? At most, the DOJ can prosecute election fraud. The results of such prosecutions would be decided by judges and juries.

Your question assumes that there is in fact substantial election fraud which is criminally changing the results of elections, the DOJ prosecutes it and a judge/jury punishes and reverses the fraud.

Suppose the DOJ treats any narrow win by the opposing party as presumptively fraudulent and routinely requires indictments for voter fraud?

Without evidence, such prosecutions are unlikely to get an indictment from a grand jury (see the trouble Ronnie Earle had getting a GJ to indict Delay on those bogus charges). If a ham sandwich indictment gets through, a court is unlikely to let it get beyond a motion to dismiss.

Suppose the DOJ make a regular practice of timing indictments to influence elections, speeding up indictments of the opposition to before the election and delaying indictments of its own party until after? Is that proper?

How will a baselesss indictment of say ACORN influence an election?

You may say that is not what is going on. Well, feel free to argue that, but stop dodging the hypothetical.

I tried to give your hypos some credence rather than dismissing them out of hand. However, the fact that you brought up the subject means that you realize your hypos are not very likely.

I find it interesting that the best possible argument in defense of the A.G.'s actions is that "Clinton might do it".

I remember when Conservatives used to operate from first principles.

The first principle at work here seems to be:

Is bypassing a Senate confirmed DAG in employment decisions a move that will produce an outcome that promotes the administration of Justice?

If a person was to define "a desirable outcome" as "whatever is politically expedient without any regard to professional standards," then they would be consistent in their reasons, but for lack of a more judicious term, it would be fair to say that their reasoning is at best incredibly short-sighted, and from a long-term view completely idiotic.

The fact that a Senate confirmed appointee is overseeing the process suggests that the Senate DOES exercise an indirect authority over how the Justice system is administered; and that, by extension, the outcome is one that will have a more Constitutionally legitimate stamp.

I would find it rather bizarre that any Conservative would argue that it is better to lower the professional standards of the DOJ and to use methods that are at best Constitutionally dubious--effectively that it what the Gonzales defenses amount to.

The fact that this order was not publicly released suggests that the A.G. and the principals involved with conceiving this decision were not entirely comfortable with the legal and political merits of the decision--even in the face of a friendly Republican controlled Senate. That's a statement and a half about the order’s possible merits.

There is no good defense for this incredibly ill-conceived and unprecedented maneuver.

Hopefully, some red lines will be put down in this case, because, at the end of the day, these aren't powers that any American should want exercised in the manner that this White House has exercised its authority. If these type of actions were to be legitimized as a reasonable precedent, the American justice system, and the American people would be the real losers.

Fundamentally these are not partisan issues that we are dealing with. The fact that a Republican president and Attorney General have exercised these authorities should be irrelevant from the view of first principles. These actions are simply wrong--morally and from a professional standard. The recent outcomes from these decisions support this view. The sad fact is that we have only seen a low-grade version of how these new procedures are likely to play out with an even less principled and less accountable president than the one who currently occupies the White House. In an open debate these unprecedented procedures never would have made it out of the conception phase, because they are so incredibly bone-headed. These actions demonstrate a complete disregard for the Constitution as it was written and as it has been practiced over our 220+ year history.

Remember how Captain Ramius (Sean Connery) had spent years quietly selecting his officers?

Remember how he couldn't quite get a crew that was 100% loyal to him, but still wound up with one officer who was a loyal servant of the (Soviet) state?

That's what happened here, except with the evil reversed. McNulty -- the guy Gonzales was forced to take as DAG after his favored minion got the stiff-arm from the Senate -- seems to have been the innocent officer who assumes he's surrounded by people like him, whose priority is the rule of law.

Gonzales' subversion of the DOJ ran silent and ran deep. One or two "accidental" slip-and-falls and they might have gotten away with it.

Two former U.S. attorneys said Wednesday they believe the White House had them fired along with six other federal prosecutors, and that ongoing investigations into the dismissals could result in criminal charges against senior Justice Department officials.

John McKay, the former U.S. attorney for Western Washington, and David Iglesias, the former U.S. attorney for New Mexico, also said they believe Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty lied under oath when they testified to Congress about the firings of eight U.S. attorneys. Gonzales is scheduled to testify today before the House Judiciary Committee.

McKay and Iglesias said they still don't know who at the White House ultimately put them on the firing list. But McKay said he believes obstruction-of-justice charges will be filed if investigators conclude any of the dismissals were motivated by an attempt to influence public-corruption or voter-fraud investigations.

"I think there will be a criminal case that will come out of this," McKay said during a meeting Wednesday with Seattle Times editors and reporters. "This is going to get worse, not better."

Additionally, McKay and Iglesias said they believe White House strategist Karl Rove and his aides instigated the dismissals and that someone in the White House ultimately decided who among the nation's 93 U.S. attorneys should be fired.http://tinyurl.com/ys5com

Not only possible criminal intent here, but the use of Fed prosecutors' offices to further a strictly political endpoint, i.e., Democratic "voter fraud" surely should raise some ethical issues, for God's sake.

Bart is truly a postmodern artist of the highest order. He, in the same comment, attempts to say that baseless prosecutions would not affect an election, then goes on to claim that the prosecution of Delay was baseless - an example of a prosecution that can be shown to have directly affected the political process. Whether or not his second point is true, it directly undermines his first.

If Bart's truly a defense lawyer for DUI, I have to assume he's been drinking with his clients. Maybe my hypothetical Bart-as-liberal-propagandist isn't so far off?

"How can the DOJ influence the outcome of elections? At most, the DOJ can prosecute election fraud. The results of such prosecutions would be decided by judges and juries."

Your fake naivete is blatant intellectual dishonesty.

As was shown in I believe Wisconsin, the Bush-appointed AG's prosecution and jailing of a Democratic operative before the election was quickly tossed on appeal. And the judge essentially accused the AG of having fabricated the case.

Let's stop the transparent thumb-sucker's BS that it isn't possible for Republicans to be corrpt to the bone.

"I tried to give your hypos some credence rather than dismissing them out of hand. However, the fact that you brought up the subject means that you realize your hypos are not very likely."

See the foregoing, Mr. Deliberate Intellectually Dishonest Ostrich.

"# posted by Bart DePalma : 8:05 PM"

Is there a reason the discussants on this blog must suffer the blatantly dishonest tripe from De Palma?